Bail Act Flashcards
7A Presumption against bail for certain offences
(1) This section applies to the following offences:
(a) murder;
(c) an offence against the Misuse of Drugs Act punishable by a term of imprisonment for 7 years or more;
(d) an offence against the Customs Act 1901 (Cth) in relation to narcotic goods punishable by a term of imprisonment for 10 years or more;
(da) an offence against Division 307 of the Criminal Code (Cth) punishable by a term of imprisonment for 10 years or more;
(db) an offence against section 36, 37, 38 or 55 of the Serious Crime Control Act;
(dc) an offence against section 54, 103A, 242 or 243(1) of the Criminal Code;
(dd) an offence against section 181 of the Criminal Code, or section 120 of the Domestic and Family Violence Act, if the person accused of the offence has, at any time before the date of that offence, been found guilty of any of the following offences (the previous offence):
(i) the offence of murder;
(ii) an offence against section 181, 188A, 189A or 192 of the Criminal Code;
(iii) an offence against a law of a State or other Territory or another country that is similar to an offence mentioned in subparagraph (i) or (ii);
(de) a serious offence (offence A) if the person accused of offence A is an adult charged with committing offence A while on bail for a serious offence (the previous offence);
(df) a serious offence (offence B) if the person accused of offence B has, within the period of 10 years immediately preceding the date of the alleged commission of offence B, been found guilty of a serious violence offence (the previous offence);
(dg) an offence where the accused person is the subject of an order made under section 40 of the Sentencing Act (the sentencing order) which may be breached if the person is convicted of the offence, unless:
(i) the offence is a contravention of, or failure to comply with, an instrument of a legislative or administrative character; or
(ii) the authorised member or court is of the opinion that the offence is so minor that a court is unlikely to regard it as a breach of the suspended sentence;
(dh) an offence against section 120 of the Domestic and Family Violence Act (offence C), if the person accused of offence C has, within the period of 2 years immediately preceding the date of the alleged commission of offence C, been found guilty of a DVO contravention offence (the previous offence);
(f) a serious sexual offence.
(2) Bail must not be granted to a person accused of an offence to which this section applies unless the person satisfies an authorised member or court that bail should be granted.
Note for subsection (2)
Section 24 requires the authorised member or court determining whether bail should be granted to take into consideration the matters in that section only.
(2A) However, subsection (2) does not apply to a person who:
(a) is accused of an offence to which this section applies; but
(b) is assessed to be suitable to participate in a program of rehabilitation that is prescribed by the Regulations.
(3) The requirement for bail cannot be dispensed with for a person accused of an offence to which this section applies and section 9(2) does not apply with respect to any such offence.
8 Presumption in favour of bail for certain offences
(1) This section applies to an offence except an offence to which section 7A applies.
(2) A person accused of an offence to which this section applies is entitled to be granted bail in accordance with this Act unless:
(a) an authorised member or court is satisfied refusing bail is justified having considered the matters mentioned in section 24; or
(b) the person stands convicted of the offence; or
(c) the requirement for bail is dispensed with under section 9.
(3) Subject to subsection (4), a person is entitled under this section to be granted bail in respect of an offence to which this section applies even if the accused person is in custody for some other offence or reason for which the accused person is not entitled to be granted bail.
(4) A person is not entitled under this section to be granted bail in respect of an offence to which this section applies, if:
(a) the person is in custody serving a sentence of imprisonment in connection with some other offence; and
(b) the authorised member or court is satisfied that the person is likely to remain in custody in connection with that other offence for a longer period than that for which bail in connection with the first-mentioned offence would be granted.
16 Authority for police to grant bail
(2) A police officer may, as an alternative to bringing a person the officer has arrested before a justice or a court of competent jurisdiction as required by Part VII, Division 6 of the Police Administration Act, within the time in which under that Division the officer would be required to bring the person before the justice or the court:
(a) inform the person charged of the person’s right to apply for bail; and
(b) as far as practicable, ensure that the person charged is able to communicate with a legal practitioner or someone of the person’s choosing in connection with an application for bail.
(3) An authorised member must, as soon as practicable after a person becomes entitled to apply for bail, determine whether bail should be granted under this Act.
(4) The police officer mentioned in subsection (2) may refrain from complying with subsection (2)(b) if the officer believes, on reasonable grounds, that it is necessary to do so in order to prevent:
(a) the escape of an accomplice of the accused person; or
(b) the loss, destruction or fabrication of evidence relating to an offence.
(5) A police officer who holds the rank of Sergeant or higher rank or any other police officer who is for the time being in charge of a police station may grant bail under this Part.
17 Bail in respect of several offences
Where a person is charged with 2 or more offences at the same time:
(a) an authorised member considering whether to grant bail to the person must decide, at the same time, whether to grant, or refuse to grant, bail to the person in respect of all the charges; and
(b) an application may be made for bail in respect of all the charges, but not otherwise; and
(c) any bail that is granted to the person must be granted in respect of all the charges and separate undertakings must not be required in respect of each charge.
24 Criteria to be considered in bail applications
(1) In making a determination as to the grant of bail to an accused person, an authorised member or a court must take into consideration so far as they can reasonably be ascertained the following matters only:
(a) the probability of whether or not the person will appear in court in respect of the offence for which bail is being considered, having regard only to:
(i) the person’s background and community ties, as indicated by the history and details of the person’s residence, employment and family situations and, if known, the person’s prior criminal record; and
(ii) any previous failure to appear in court pursuant to a recognizance of bail entered into before the commencement of this section or pursuant to a bail undertaking; and
(iii) the circumstances of the offence (including its nature and seriousness), the strength of the evidence against the person and the severity of the penalty or probable penalty; and
(iv) any specific evidence indicating whether or not it is probable that the person will appear in court;
(b) the interests of the person, having regard only to:
(i) the period that the person may be obliged to spend in custody if bail is refused and the conditions under which the person would be held in custody; and
(ii) the needs of the person to be free to prepare for the person’s appearance in court or to obtain legal advice or both; and
(iii) the needs of the person to be free for any lawful purpose not mentioned in subparagraph (ii); and
(iiia) any needs of the person relating to:
(A) any cognitive impairment, as defined in section 6A(2) of the Mental Health and Related Services Act of the person; or
(B) any mental impairment, as defined in section 43A of the Criminal Code of the person; and
(iiib) whether or not the person is a youth within the meaning of the Youth Justice Act; and
(iiic) any needs relating to the person’s cultural background, including any ties to extended family or place, or any other cultural obligation; and
(iv) whether or not the person is, in the opinion of the authorised member or court, incapacitated by intoxication, injury or use of a drug or is otherwise in danger of physical injury or in need of physical protection;
(c) the risk (if any) that the accused person would (if released on bail) interfere with evidence, witnesses or jurors;
(d) the risk (if any) that the accused person would (if released on bail) commit an offence, a breach of the peace, or a breach of the conditions of bail;
(e) the risk (if any) that would result from the accused person’s release on bail to the safety or welfare of:
(i) the alleged victim of the offence; or
(ii) the close relatives of the alleged victim; or
(iii) if the alleged victim is a child – any person (other than a close relative) who has the care of the child; or
(iv) any other person whose safety or welfare could, in the circumstances of the case, be at risk if the accused person were to be released on bail.
Note for section 24(1)(b)(iiic)
When considering bail, an authorised member or court must have regard to section 15AB(1)(b) of the Crimes Act 1914 (Cth).
(2) For this section, the authorised member or court may take into account any evidence or information which the authorised member or court considers credible or trustworthy in the circumstances, including hearsay evidence.
(3) In assessing risks to others that could result from the release of an accused person on bail, the authorised member or court must have regard to risks of the following kinds:
(a) a risk of violence or intimidation;
(b) a risk of property damage;
(c) a risk of harassment;
(d) any other risk to safety or welfare.
(3A) In assessing the risks to others under subsection (3), the authorised member or court must consider the following:
(a) the previous, current or proposed living arrangements for an alleged victim and for the accused person (assuming the accused person’s release on bail);
(b) whether those arrangements include or would include their living in unreasonably close proximity to each other.
(4) If the alleged victim of an offence is a child, or the alleged offence is a serious sexual offence or a serious violence offence, the safety and welfare of the alleged victim must be considered with particular care.
(5) In regard to a child’s safety and welfare, the following matters are to be considered:
(a) the child’s age;
(b) the age of the accused person;
(c) any familial relationship that may exist between the child and the accused person;
(d) the living arrangements for the child and for the accused person (assuming the accused person’s release on bail);
(e) the desirability of preserving the child’s living arrangements and family and community relationships;
(f) the emotional as well as the physical wellbeing of the child;
(g) any other relevant matter.
(6) If an alleged victim expresses concern to the prosecutor that the release of the accused person on bail could lead to a risk to the alleged victim’s safety or welfare, the prosecutor must, wherever practicable, inform the authorised member or court about that concern and the reasons for it.
27 Conditions of bail
(1) Bail may be granted unconditionally or subject to conditions imposed by instrument in writing.
(2) One or more of the following conditions may be imposed on the grant of bail under this section:
(a) that the accused person enter into an agreement (a conduct agreement) to observe specified requirements as to the accused person’s conduct while on bail, other than financial requirements (whether for the giving of security, the depositing of money, the forfeiture of money or otherwise);
(b) that one or more than one acceptable person, other than the accused person, acknowledge that the acceptable person is acquainted with the accused person and that the acceptable person regards the accused person as a responsible person who is likely to comply with the bail undertaking;
(c) that the accused person enter into an agreement, without security, to forfeit a specified amount of money if the accused person fails to comply with the bail undertaking;
(d) that one or more than one acceptable person, other than the accused person, enter into an agreement or agreements, without security, to forfeit a specified amount or specified amounts of money if the accused person fails to comply with the bail undertaking;
(e) that the accused person enter into an agreement, and deposit acceptable security, to forfeit a specified amount of money if the accused person fails to comply with the bail undertaking;
(f) that one or more than one acceptable person, other than the accused person, enter into an agreement or agreements, and deposit acceptable security, to forfeit a specified amount or specified amounts of money if the accused person fails to comply with the bail undertaking;
(g) that the accused person deposit with an authorised member or a court a specified amount of money in cash and enter into an agreement to forfeit the amount deposited if the accused person fails to comply with the bail undertaking;
(h) that one or more than one acceptable person, other than the accused person, deposit with an authorised member or a court a specified amount or specified amounts of money in cash and enter into an agreement or agreements to forfeit the amount or amounts deposited if the accused person fails to comply with the bail undertaking;
(j) where:
(i) bail is granted by a court; and
(ii) the offence with respect to which the application is made is an offence punishable by a term of imprisonment for 2 years or more, or, by payment of a maximum penalty of, or of not more than an amount equal to, 85 penalty units;
that the accused person surrender every passport, whether Australian or foreign, held by the accused person.
(3) The determination as to:
(a) which person or persons, or class or description of persons, are acceptable persons for a condition referred to in subsection (2)(b), (d), (f) or (h) and the number of acceptable persons required for those purposes; or
(b) the nature and sufficiency of security that is acceptable security for a condition referred to in subsection (2)(e) or (f);
must be made by:
(c) the authorised member or the court imposing the condition; or
(d) in the absence of a determination by the authorised member or the court referred to in paragraph (c) – the court or person to whom the bail undertaking is given.
(3A) Where a court imposes a bail condition under subsection (2)(j):
(a) the passport or passports must be given to the Registrar or other appropriate officer of the court;
(b) the Registrar or other appropriate officer of the court must cause the passport or passports to be kept in such custody as he or she thinks fit for such period, or on the occurrence of any contingency, as is specified by the court; and
(c) the passport or passports must, in accordance with the terms specified under paragraph (b), be returned to the accused person unless the court orders otherwise.
(3B) Where a court imposes a condition on the grant of bail under subsection (2)(j) and an Australian passport is surrendered in compliance with the condition, the Registrar or appropriate officer of the court must, as soon as is practicable, give to the Minister administering the Australian Passports Act 2005 (Cth) a copy of the order.
(4) The Regulations may require an acknowledgement under this section to contain such details, to be provided by the person making the acknowledgement, as are prescribed relating to the circumstances in which the person is acquainted with the accused person.
(5) An agreement or acknowledgement under this section must be in writing.
(6) A condition, agreement or acknowledgement under this section may be entered into or made in respect of more than one offence.
27A Conduct agreements
(1) A conduct agreement may:
(a) prohibit an accused person from associating, or being in company, with one or more specified persons; or
(b) require an accused person to keep away from one or more specified persons or from persons of a specified class; or
(c) prohibit an accused person from communicating in any way (directly or indirectly) with one or more specified persons, or with a person of a specified class; or
(d) prohibit an accused person from being within a particular locality or area; or
(e) prohibit an accused person from being outside a particular locality or area; or
(f) require an accused person to reside at a specified place; or
(g) require the accused person to report at specified intervals at a police station or other place; or
(h) prohibit an accused person from consuming alcohol or using a drug (other than a drug as prescribed for the person by a health practitioner); or
(ha) require an accused person who is the subject of a prohibition mentioned in paragraph (h) to submit to testing by an authorised person to monitor compliance with the prohibition; or
(i) prohibit an accused person from engaging in conduct of any other specified kind; or
(ia) for bail granted by a court – require the accused person:
(i) to wear or have attached, and to not tamper with, destroy or otherwise interfere with, an approved monitoring device while on bail or the lesser period ordered by the court; and
(ii) to allow the placing or installation in, and retrieval from, a specified place of anything necessary for the effective operation of the monitoring device; or
(ib) for bail granted by a court – require the accused person:
(i) to give a sample of the accused person’s voice for use with an approved monitoring device; and
(ii) to comply with the reasonable directions of a probation and parole officer in the use of the device for the effective monitoring of the accused person’s activities while on bail; or
(j) contain a combination of 2 or more of the above.
(2) A conduct agreement operates (subject to its terms) throughout the period for which the accused person is on bail.
(2A) A provision of a conduct agreement that aims to ensure compliance by the accused person with another provision of the agreement is an ancillary provision.
Example for subsection (2A)
A provision as mentioned in subsection (1)(g), (ha), (ia) or (ib).
(2B) The Regulations may make provision about a matter relating to an ancillary provision.
(3) A conduct agreement may be subject to exceptions and qualifications stated in the agreement.
Example
A conduct agreement might permit the accused person to leave a particular locality, contrary to a prohibition under subsection (1)(e), with a particular permission or in specified circumstances.
(4) Contravention of a provision of a conduct agreement is to be regarded as a breach of a condition of bail.
(5) A court may excuse a contravention of a conduct agreement if satisfied that the accused person had a reasonable excuse for the contravention.
(6) In this section:
authorised person means:
(a) a police officer; and
(b) any other person or class of persons prescribed by the Regulations.
health practitioner means a person registered under the Health Practitioner Regulation National Law to practise in a health profession (other than as a student).
33 Review
(1) An authorised member must ensure that:
(a) the person charged is made aware of the determination of the member with respect to the granting of or the refusal to grant bail as soon as practicable after that determination is made; and
(b) the person charged is aware of the person’s right to apply to a magistrate or justice for a review of that determination in the circumstances mentioned in subsection (3); and
(c) as far as is practicable, the person charged is able to communicate with a legal practitioner or any other person in connection with an application to a magistrate or justice under this section.
(2) An authorised member may refrain from complying with subsection (1)(c) if the member believes on reasonable grounds that it is necessary to do so in order to prevent:
(a) the escape of an accomplice of the person charged; or
(b) the loss, destruction or fabrication of evidence relating to an offence.
(3) The person charged may apply to a magistrate or justice for a review under this section of any of the following matters:
(a) a decision by an authorised member to refuse to grant bail to the person;
(b) a failure of an authorised member to determine whether or not to grant bail to the person within 4 hours after the person was charged;
(c) a determination by an authorised member to grant bail to the person subject to conditions (other than a bail undertaking) with which:
(i) the person is unable or unwilling to comply; or
(ii) the person is unable or unwilling to arrange for another person to comply.
(4) Where the person charged indicates to a police officer that the person wishes to make an application under subsection (3), the member must, as soon as practicable after the person gives that indication, bring or arrange for the person to be brought before a magistrate or a justice or must arrange for the person to make an application to a magistrate or justice by telephone, telex, radio or similar facility.
(5) If a person who may make an application under subsection (3) for a matter has not done so, a magistrate or justice may, at the initiative of the magistrate or justice, review that matter.
(6) In reviewing a matter under subsection (3) or (5), a magistrate or justice must:
(a) for a matter mentioned in subsection (3)(a) or (c):
(i) review the decision or determination; and
(ii) confirm or vary the decision or determination (including varying or imposing conditions of bail for the person); or
(b) for a matter mentioned in subsection (3)(b) – determine whether or not to grant bail to the person (including imposing conditions of bail if bail is to be granted).
(7) The magistrate or justice:
(a) must give the person, his or her legal representative and the authorised member reasonable opportunity to make submissions for subsection (6); and
(b) may make any order for exercising the power of the magistrate or justice under this section.
37B Offence to breach bail
37B Offence to breach bail
(1) A person commits an offence (the bail offence) if the person:
(a) is granted bail for an offence (the original offence); and
(b) engages in conduct that results in a breach of the person’s bail undertaking, or a condition of the grant of bail, for the original offence.
Maximum penalty: 200 penalty units or imprisonment for 2 years.
(2) It is a defence to a prosecution for the bail offence if the defendant establishes a reasonable excuse.
(3) A penalty imposed for the bail offence must not exceed the maximum penalty that may be imposed for the original offence.
